Oregon Democrats unveil bill to recriminalize drug possession, step up access to treatment

Oregon’s landmark experiment in drug decriminalization looks likely to meet its end next month, as lawmakers in both parties offer up proposals that would make drug possession a crime for the first time in three years.

The strongest sign yet that change is in the air: Majority Democrats on Tuesday unveiled a wide-ranging proposal that would unravel a portion of Measure 110, the 2020 ballot measure that ensured users could not be prosecuted if caught with small amounts of illicit drugs.

Under that bill, lawmakers would make possession of small amounts of drugs like fentanyl, methamphetamine and heroin a low-level misdemeanor and give law enforcement more power to prosecute dealers.

The changes — floated in a proposal by Senate Majority Leader Kate Lieber, D-Portland, and state Rep. Jason Kropf, D-Bend — serve as a starting point for a discussion on drug policy and addiction that promises to be a major focus in this year’s legislative session.

They are a nod to the angst many voters are feeling over open drug use in Portland and surging overdoses around the state, but also a notable course correction for a state that has attempted to prioritize addiction services to drug users over criminal consequences in recent years.

Kropf and Lieber shocked people on both sides of the drug policy debate when they previewed details of their bill earlier this month. They said in a recent interview they are not abandoning the spirit of Oregon’s public health approach.

Related: Oregon lawmakers are floating a plan to make low-level drug possession a crime once again

Included in the proposal are provisions that would give Oregon what Kropf called “the most rehabilitative public safety approach in the country” for drug use. He said people caught with user amounts of drugs would have repeated opportunities to skirt a criminal conviction — or charges altogether — in exchange for meeting with a service provider. Even if a person were convicted under the bill, Kropf and Lieber said, they would have the ability to have their record expunged with relative ease.

The bill, House Bill 4002, also includes a host of other policy changes. Democratic lawmakers want to make it easier for drug users to receive medications to treat withdrawal symptoms, dedicate money to bolster specialty courts that prioritize treatment, and create new sober housing and other needed services.

“What we’re saying is what is happening on our streets needs to stop and police are going to play a role in that, and the behavioral health system is going to play a role in that,” Kropf told OPB. “What we’re trying to do is blend those two responses together.”

The bill unveiled Tuesday is the product of months of work by Lieber and Kropf, both former prosecutors who were tasked with chairing a special legislative committee to respond to Oregon’s worrisome recent struggles with fentanyl and meth. The Addiction and Community Safety Response Committee has held four hearings since October, featuring testimony from addiction experts, treatment providers and law enforcement.

The product of that effort, HB 4002, is being hammered as harmful by decriminalization advocates, and insufficient by Republicans and some in law enforcement.

“We really did go at this as trying to say, ‘What is the policy that we need?’” Lieber said. “Let’s listen to everybody and let’s try to make some compromise, even though we’ve got people on both sides of us who are telling us they’re not that happy with it.”

Faced with backlash — and the possibility a more hardline proposal rolling back Measure 110 could land on the ballot in November — Lieber and Kropf view their proposal as a compromise.

Groups that advocate for Measure 110 have been harshly critical of the proposal to reintroduce possible criminal penalties for drug possession. They point out that the court system is already under severe strain due to a public defender shortage, and that the nation’s decadeslong drug war was both unsuccessful and particularly detrimental for communities of color.

Tera Hurst is the executive director of the Health Justice Recovery Alliance, a group that has fought to preserve Measure 110 and the addiction services it is funding. She says Oregon lawmakers are on the verge of making a critical error at a time those investments are beginning to pay off.

“This is going to slow everything down,” Hurst said. “This is not going to give voters the instant gratification that everyone is looking for. This is more bureaucracy, wasted money and wasted resources.”

Hurst said lawmakers should have focused on prohibiting public drug use, rather than recriminalizing possession itself. She argued Lieber and Kropf’s bill will push the public safety system to a breaking point, create a demand for health services that don’t yet exist, and make drug users distrustful of those that do.

“We tried to change a racist system” with Measure 110, she said. “It’s snapping back.”

Meanwhile law enforcement groups and Republican lawmakers say the Democrats’ plan does not go far enough. The state’s district attorneys and police have argued that drug possession should be a class A misdemeanor, the most serious kind, punishable by up to a year in jail. Only more severe potential consequences will be sufficient to prompt people to accept help, they argue.

“I am saddened by the Democrats’ lack of interest to do what is necessary to end the drug addiction crisis, which is killing people young and old every single day,” Senate Minority Leader Tim Knopp, R-Bend, said in one of many statements from conservatives criticizing the proposal. “They are instead choosing to listen to special interest activists and pursue an omnibus bill reduced to window dressing.”

The proposal sketched out by Lieber and Kropf would:

• Make possessing a small amount of drugs a class C misdemeanor, compared to a violation akin to a traffic ticket under current law. The lawmakers say this change would have the impact of both outlawing public drug use — a major concern in Portland — and giving police an easier way to confiscate drugs. The state would be required to track enforcement of the law to detect racial disparities.
• Offer “mandatory” options for escaping consequences. Under the approach Lieber and Kropf favor, police would be required to offer to connect a person with a service provider, rather than arresting them and pursuing charges. “The idea would be that your first door is a behavioral health door and you’re going to be offered that door,” Lieber said. If the person declined, they could still escape a conviction by agreeing to accept services once a charge had been filed. Convictions could be expunged. These same avenues would not be available to people caught with larger amounts of drugs.
• Make it easier to convict drug dealers. A recent Oregon Court of Appeals decision upended decades of settled law for how prosecutors could charge people caught with large amounts of drugs. The bill would tweak state law to ensure such people could be prosecuted as having an “intent” to sell. The bill would also offer stepped up consequences for people who sell drugs in parks, or near treatment facilities or homeless shelters.
• Give treatment centers the option of holding a drug-intoxicated person up to three days without their consent, as opposed to the current two days. The proposal also calls for improved addiction treatment for Medicaid recipients, and stepping up efforts to prevent people from falling into addiction in the first place.
• Make it easier to get medications to treat opioid addiction. Lieber and Kropf want to eliminate insurance hurdles to accessing those drugs, give pharmacists the ability to prescribe them in emergency situations, and bolster the availability of such treatment in jails. The last element is likely to be handled by a separate bill, filed by Rep. Pam Marsh, D-Ashland.
• Expand “certified community behavioral health clinics” in the state.
• Find lots of new money for additional services. Kropf and Lieber are proposing $30 million to help stand up “sober housing” for people in recovery, and are creating a list of shovel ready projects that would fill gaps they identify in the state’s system of care. They could not say how much money they might ultimately ask for.

Polling suggests Oregonians are angry with the status quo, as drug use has taken an increasingly visible toll. Those woes aren’t solely — or even primarily — due to drug decriminalization, Kropf and Lieber say, but Measure 110 did create difficulties.

Under the law, possessing small amounts of drugs became a violation, punishable with a ticket that could be ignored without any legal consequence. As a result, law enforcement agencies said they lost leverage to search for and confiscate drugs, or even to block people from using drugs in public.

The ballot measure also put hundreds of millions toward expanding addiction services in the state, an aspect of the law that, while slow to mature, is having positive impacts. But an effort to help steer people toward those services by offering to dismiss drug possession tickets if drug users called a state-run hotline has been a complete flop.

Republicans are offering an alternative bill this year that is similar in some respects to HB 4002, but also includes stronger penalties for possession, a requirement that a person seek treatment to avoid criminal penalties, and the dismantling of the citizen commission that distributes grant funding under Measure 110.

Meanwhile, the group floating a ballot measure to roll back Measure 110 has been taking its message to Oregonians ahead of the legislative session. The Fix Ballot Measure 110 campaign is airing ads on digital and streaming platforms that blame the ballot measure for “making all of our problems worse.”

“How many more kids have to die before state lawmakers recriminalize hard drugs?” says one recent ad. “Tell the politicians to act now.”

Max Williams, the former lawmaker and Department of Corrections director leading the group, suggested Tuesday afternoon that Lieber and Kropf’s proposal was insufficient.

“Anything short of reclassifying deadly drugs as a Class A misdemeanor crime will be inadequate to effectively steer more people into more treatment more quickly,” he said.